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INDEPENDENT INSTITUTE, 100 SWAN WAY, OAKLAND, CA 94621 • 800-927-8733 • [email protected] PROMO CODE IRA1703
On the Nature
of Civil Society
—————— ✦ ——————
CHARLES K. ROWLEY
T
he collapse of the Soviet Empire and the efforts made in Central and Eastern
European countries to construct or reconstruct civil society as the salvation
of their nations have inspired Western intellectuals to reconsider the concept
of civil society and to ask whether it may also help us to understand the condition of
Western societies. In both cases, the crisis of socialism, as an ideology and as a practical
experience, has proved to be the fulcrum of this search for alternative concepts. For
the most part, the concept of civil society is viewed by those active in its renaissance as
an attractive combination of domestic pluralism and a continuing role for extensive
state regulation and guidance. As such, it offers a broad tent capable of sheltering a
multitude of diverse political systems. So broad indeed is this tent that it may be defined more appropriately as an empty shell (Rowley 1996, 6).
In this article, I shall review briefly the history of the concept of civil society and
evaluate its relevance for classical liberal political economy. I shall suggest that the
concept of civil society advanced by John Locke, the young John Stuart Mill, and
other like-minded classical liberal scholars best encapsulates the classical ideal and provides an intellectually rigorous basis for defining the appropriate role of government,
for protecting individual liberties, and for stimulating those private associations of
individual citizens, all of which, in combination, constitute the fundamental basis for
human flourishing and the wealth of nations.
The Concept of Civil Society in Historical Perspective
Until the end of the eighteenth century, the term “civil society” was synonymous with
the state or political society. In this respect, the term reflected precisely its classical
Charles K. Rowley is a professor of economics at George Mason University and General Director of The
Locke Institute.
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origins as a translation of Aristotle’s Koinonia politike or of Cicero’s societas civilis. In
this conception, civil society expresses the growth of civilization to the point where
society is civilized as classically expressed in the Athenian polis or the Roman republic.
It represents a social order of citizenship in which men (more rarely women) regulated
their relationships and settled their disputes according to a system of laws, where civility reigned, and where citizens took an active part in public life (Kumar 1993, 377;
Ferguson 1991; Roepke 1996).
Following directly in this tradition, John Locke (1690) employed civil government as a synonym for civil or political society, Kant defined bürgerliche Gesellschaft as
that constitutional state toward which political evolution tends, and Rousseau defined
the état civil simply as the state. In all these usages, civil society is contrasted with the
uncivilized condition of humanity in a hypothetical state of nature or under an unnatural system of government that rules by despotic decree rather than by laws.
In Democracy in America, Alexis de Tocqueville narrowed the concept of civil
society along sociological lines by delineating three realms of society. First, there is the
state, which comprises the system of formal political representation, with its parliamentary assemblies, courts, bureaucracies, police, and army. Second, there is civil society, which essentially comprises the system of private and economic interests. Third,
there is political society with its political associations such as local government, juries,
and political parties and its civil associations such as churches, schools, scientific societies, and commercial organizations.
The life of all these associations, the “super-abundant force and energy” they
contribute to the body politic, constitutes political society. Political society supplies
“the independent eye of society” that exercises surveillance over the state. It educates
us for politics, tempers our passions, and curbs the unmitigated pursuit of private selfinterest.
In the postcommunist order, Tocqueville’s third category, political society, has
become the principal fulcrum for the reconstructed concept of civil society. The tendency has been for ex-Marxists and non-Marxists alike to stress the specifically noneconomic and nonstate dimensions of civil society and to focus attention on civic,
cultural, educational, religious, and other organizations operating at the periphery of
the capitalist system, yet essentially autonomous from the state itself.
In a sense, this preoccupation is entirely understandable, though misguided, among
the intellectuals of Central and Eastern Europe, where prior to 1989 the elevation of
civil society was perceived not as constituting a new relationship between state and
society but rather as an uncoupling of that relationship. Because the state could not be
effectively challenged, it was to be ignored. The supporters of civil society aspired to
make it an alternative society, a parallel society coexisting for the time being with a
delegitimized and weakened official state (Kumar 1993, 386). Nothing better illustrated this parallel than Solidarity in Poland, which remained cohesive from the late
1970s until the collapse of communism but thereafter fragmented into sectorial
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squabbles and personal rivalries and became incapable of evolving the institutions necessary for a safe transition to constitutional democracy.
In no small part because intellectuals had evaluated civil society above the state,
viewing it as the solution to all problems accumulated by socialism, they evinced a
serious lack of concern after 1989 with regard to the reconstitution of the state and
the private economy from the broader perspective of civil society in its classical conception. This lack of concern was especially serious (Klaus 1996) because communism
was not defeated but simply collapsed, leaving weak and inefficient markets and weak
and inefficient democracies, conditions that continue to plague the entire
postcommunist order, the Czech Republic included. As Tocqueville noted, politics
spreads “the general habit and taste for association,” not vice versa. In the absence of
an appropriately formulated polity, civil society in both its broad classical sense and its
narrow late-twentieth-century conception simply will not exist.
Much less excusable, and at least equally misguided, has been the post-1989
reaction of too many Western intellectuals. By claiming “the end of history” (Fukuyama
1992) and assuming too easily that the collapse of communism implied the success of
U.S.-style capitalism, the large majority of Western intellectuals forgot the maxim that
“eternal vigilance is the price of liberty” and focused attention excessively on the resurrection of civil society in the narrow “political association” sense of Tocqueville.
By inferring the final victory of democracy and capitalism over autocracy and
socialism, these Western intellectuals proclaimed, at least implicitly, that any preoccupation with classical political economy was unnecessary and suggested instead that the
results of majoritarian democracy represented the highest level of politicoeconomic
achievement (Nozick 1989; Gray 1989, 1993). These judgments were (and are) misguided.
Certainly the free society rests upon and is intended to nurture a solid foundation
of competent, self-governing citizens, fully capable of and personally responsible for
making the major political, economic, and moral decisions that shape their own lives
and those of their children. Certainly, such personal qualities are nurtured and passed
on to future generations by healthy families, churches, neighborhoods, voluntary associations, and schools, all of which provide training in, and room for, the exercise of
genuine citizenship. Certainly, this expansive understanding of citizenship is challenged
in the late-twentieth-century United States, as it was not when Tocqueville wrote
Democracy in America, by contemporary forces and ideas that regard individuals as
passive and helpless victims of powerful external forces.
It is a fundamental error, however, to assume that these contemporary forces and
ideas are exogenous elements of the state of nature to be counteracted by some narrow retreat into civil society or by some program that seeks directly to reinvigorate and
to reempower the traditional local institutions that provide the environment for the
exercise of genuine citizenship. In truth, the forces and ideas that now erode good
citizenship emanate from the consequences of an ill-directed twentieth-century politi-
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cal economy, not from any neglect of civil society in its narrow late-twentieth-century
form.
Before Resorting to Politics
“Why does anyone want to resort to politics, and why does anyone put one kind of
political order above another?” Anthony de Jasay (1996) suggests that those who are
both very earthy and very frank approve the political order that they believe is doing
the most good for them. Such a “grand criterion” of political hedonism has no prospect of generating basic agreement about the respective merits and consequences of
political systems except for the lowest common denominator of democracy, namely,
the shared redistributive advantage of a winning over a losing coalition.
What is true in this crude and obvious way about the system of political hedonism in which the state caters to some interests and neglects others is also true, if less
conspicuously, about any other political order that fosters one value and neglects others. Not all values are compatible; most compete with one another. A political order
reveals a hierarchy of values by what it promotes and demotes, by the marginal rates of
substitution between them that it establishes through policy interventions.
Predictably, the value-orientated political order will be an imperfect match for
those who live within it if the citizens are heterogeneous with respect to the values
they uphold. No discernible mechanism would make global choice coincide with the
best available choice of each individual consistent with the best available choice of
every other—the equilibrium condition of ordered anarchy. Value neutrality, where
there is not too much of one thing and too little of another, can be achieved by individuals for themselves, but not by a political order for many, let alone for everybody
(Jasay 1996, 5).
Jasay (1996, 7) notes the pronounced danger for the equilibrium condition of
ordered anarchy posed by the narrow consequentialism of utilitarian philosophy when
promoted through the political process. Within the logic of consequentialist ethics it is
all but incoherent to want to limit the scope of government. Limiting government on
purpose would be rational only if the scope for doing good were itself limited, which
no doubt it is not.
Yet the utilitarian ethic as deployed in its late-twentieth-century form ignores its
own value judgment, namely, the impossibility of comparing utilities across individuals. If alternatives are incommensurate, no balance can be struck between the good
and the bad consequence, and consequential reasoning is simply out of place. This
difficulty leads Jasay (1996, 10) to deploy his first warning to those who would resort
to consequentialist politics: first, avoid doing harm.
In this view, a political authority simply is not entitled to employ its power of
coercion for imposing value choices on society. Its sole guiding principle in all such
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cases can only be: when in doubt, abstain. This principle can be applied retrospectively
to dismantle polities that have become suffused with consequentialist ethics as well as
prospectively, in the state of nature, to prevent such a suffusion from ever occurring.
One implication of this guiding principle for political ethics is that applying coercion is legitimate only when it is positively invited by those who will be coerced. Assuming that property rights are given, the only circumstances in which rational individuals might choose coercion would be if transaction costs, default, and free-rider
and hold-out temptations obstructed the solution of bargaining problems. In such
circumstances, Jasay, (1996, 7) suggests that hypothetical invitations to be coerced
have no better standing than hypothetical contracts. Those who will be coerced must
actually invite coercion. Only then do certain tasks become duties that the state must
assume.
Circumstances endow each individual with a set of actions that are feasible from
a material perspective. Some of these actions are inadmissible because they would harm
others in a way that would constitute a tort by the conventional norms of the society.
Other actions are inadmissible because individuals have contracted with others not to
choose them. To choose such actions would constitute a default or a breach of an
obligation. Every other feasible act is admissible (Jasay 1996, 29–30).
With torts and obligations taken care of, the set of admissible actions becomes a
residual. Harm and obligations together constitute the full set of valid objections,
establishing a strong presumption that all other actions should be allowed.
Coercion by the state fits well into this categorization of feasible actions. Applied
to the inadmissible subset, coercion functions to deter tortious harms and contract
breaches. State coercion applied to the admissible subset of actions prima facie is illegitimate. It deforms the value of rights and liberties by threatening or committing a
tort (in principle, if not by social convention). Only by the explicit invitation of those
who are coerced can this presumption conceivably be overruled. Doubt about an issue
creates a presumption to abstain from resolving it by state coercion (Jasay 1996, 54).
Of Property
For those who accept this delineation of the role of politics, the twentieth-century
view that notions of fairness call upon the state to play a deliberately redistributive role
seems mistaken. Redistributive politics clearly creates gainers and losers. Therefore, it
necessitates a balancing of the good of some and the bad of others. If such a balancing
is ruled inadmissible, redistribution cannot serve as a warrant for the use of coercion.
If consequentialism is disallowed, politics can play no legitimate role with regard to
redistribution.
Fundamental to this thesis is the presumption that property is partitioned before
resorting to politics, that it is not some common-pool resource the use of which and
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the partitioning of which remain permanently under the control of the political process. This presumption runs counter to late-twentieth-century practice, which emphasizes a redistributionist ideology. The only difference between this redistributionist
ideology and socialism is that the former still pays lip service to efficiency gains and
accepts on consequentialist grounds some limited version of the exclusion principle
implied by private property, whereas the latter does not. The tragedy of the commons
overhangs all societies in which property is not strictly partitioned among private individuals, quite independently of whether such societies are redistributionist or socialist,
autocratic or democratic.
In the view of John Locke ([1690] 1991), even prior to the social contract that
establishes political or civil society, every individual has a property in his own person
and a right to the product of his own labor. In addition, individuals create property
rights out of the common pool of available resources by mixing their labor with such
resources and thereby annexing them. These rights are natural rights, at least if the
Lockean proviso is satisfied:
Whatsoever then he moves out of the State that Nature hath provided and
left it in, he hath mixed his labour with, and joyned to it something that is
his own, and thereby makes it his Property. It being by him removed from
the common state Nature placed it in, it hath by this labour something
annexed to it, that excludes the common right of other Men. For this Labour
being the unquestionable Property of the labourer, no Man but he can have
a right to what that is joyned to, at least where there is enough and as good
left in common for others. (288)
It is important to note that this natural right to property is not an inalienable
right, at least in the sense I shall outline. For this reason the United States founders,
who were influenced greatly by Locke’s writings, failed to list property as one of the
inalienable rights in the preamble to the Constitution. If we define an inalienable right
as a right that cannot be lost in any way, then such a right would incorporate both a
disability and an immunity: the possessor of the right would not be able to dispose of
it voluntarily or involuntarily, nor would any other person, group, or institution be
able to dispossess him of it. Property clearly does not fall into this category of a right,
as it can be given away or exchanged voluntarily (alienated) and it can be lost involuntarily through negligence or wrongdoing (forfeited).
The natural right to property does imply, however, that it cannot be taken away
by some other party, including a government (prescribed). In this sense, we may denote the natural right to property as an imprescriptible right. What revolutionary authors such as Locke had in mind was not that no government could take away the right
to property but rather no state legitimately could take away this right without the
owners’ consent. The force of this claim can be appreciated only when we remember
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that Locke wrote his Treatises under the influence of contractarian accounts of government authority (Simmons 1993, 107).
The Supreme Court cannot take from any Man any Part of his Property
without his own consent. For the preservation of Property being the end of
Government, and that for which Men enter into Society, it necessarily supposes and requires, that the People should have property, without which
they must be suppos’d to lose that by entering into Society which was the
end for which they entered into it, too gross an absurdity for any Man to
own. (Locke [1690] 1991, 360)
The Lockean assertion that each individual is born free in the state of nature
correctly recognizes that we are not born into political communities. We are not naturally citizens; we must do something to become citizens. Locke clearly depicted the
state of nature as one of “perfect freedom to order their Actions, and dispose of their
Possessions, and Persons, as they think fit, within the bounds of the law of Nature,
without asking leave, or depending on the Will of any other Man” (bk. 2, para. 4). The
state of nature has a law to govern it, which obliges every individual: no individual
“ought to harm another in his Life, Health, Liberty or Possessions” (bk 2, para. 6).
The law of nature essentially reflects the moral claim of each individual to negative freedom and the duty and responsibility of each individual to respect the negative
freedoms of all others. To this end, each individual has an executive power to punish
transgressors of the law of nature “to such a Degree as may hinder its Violation” (bk.
2, para. 7). Indeed, those who transgress the law of nature to a sufficient degree may
forfeit their own rights to life, liberty, and property. Only the constant danger of the
degeneration of the state of nature into a state of war leads individuals to commit to a
social contract that creates civil society and to a limited government entrusted with the
executive authority to preserve and protect their natural rights.
Civil societies and governments do not possess rights naturally; only individuals
do. By agreeing to leave the state of nature and enter into civil society, individuals
necessarily sacrifice their right to judge and punish breaches of their natural rights by
others. This is no small sacrifice and will not be countenanced unless civil or political
society is strictly limited with respect to the powers it exercises. With respect to natural
rights of individuals to life and liberty, Locke implied that persons cannot make transfers to government even by consent, for these rights are inalienable. With respect to
the natural right to property, individuals can make transfers to government by consent, for these rights are not inalienable. Individuals cannot legitimately have these
rights taken without consent (except perhaps by forfeiture), because these rights are
imprescriptable.
Although Locke viewed natural rights essentially as a gift from God, he justified
the natural right to private property primarily on utilitarian grounds, rejecting Robert
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Filmer’s argument that original communism could not give way to private property
without the universal consent of mankind:
God gave the World to Men in Common; but since he gave it them for their
benefit, and the greatest Conveniences of Life they were capable to draw
from it, it cannot be supposed he meant it should always remain common
and uncultivated. He gave it to the use of the Industrious and Rational...
not to the Fancy or Covetousness of the Quarrelsome and Contentious.
(bk. 2, para. 34)
Locke’s theory of first possession as the fundamental basis for property rights
offers an essentially utilitarian justification for privatizing the initially common gift
from God on a basis that confirms a clear-cut route to the determination of title.
Because his focus naturally was on land, he was overly concerned to condition
privatization by the proviso that “there is enough, and as good left in common for
others” (bk. 2, para. 27). In countries where available land has been largely privatized,
this proviso may seem to threaten the natural-right proposition, even to lend succor to
socialism.
Such an interpretation, however, is incorrect. The modern theory of property
rights concerns itself more with legitimate exploitation of opportunities than with the
narrow concept of ownership focused on by Locke. If “the right to property is a right
to action” (Rand 1961, 94), a theory of property rights relates much more to the
intellectual and physical efforts of individuals than to a common stock of assets. Property rights concern allowable acts of transformation of the material world among which
individuals possessing such rights are free to choose.
Because property is created largely through an act of transformation rather than
a circumstance of possession, the Lockean proviso seemingly is moot. For there can
never be “enough and as good” left for others if every action issues in a unique transformation (Rasmussen and Den Uyl 1991, 120). Acts of transformation under conditions of original acquisition are not rights-violating, because no one has rights to the
pretransformed objects under consideration. (I shall argue later that this concept of
property rights has powerful implications for the nature of civil society.)
For those who do not subscribe to Locke’s notion of a natural right, Jasay (1996)
outlines an alternative notion that is fully compatible with Locke’s first-possession
commitment. Jasay’s defense of the first-possession rule is general and unambiguous.
If an individual is in a position to take first possession, then such a taking is admissible
if it does not constitute a tort (trespass) and if it violates no antecedent right (the case
by definition). In such circumstances, taking exclusive possession is a liberty that can
be obstructed only by a contrary right, which does not exist.
Two alternative acts constitute an appropriation that vests ownership in the performer, namely, (1) finding and keeping and (2) enclosure. Because the right to property is the fulcrum of a civil society, it is worthwhile to review briefly each of these
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constitutive acts. Accepting the notion of finding and keeping as the basis for property
rights involves respecting the moral arbitrariness of luck. Redress then cannot be called
for on moral grounds. Any judgment that the resulting distribution of wealth is right
or wrong involves a category mistake by reference to the finding-and-keeping rule.
Finding and keeping poses no question of justice and creates no liability to compensate or redress.
Suppose alternatively that the potentially useful resource is there for all to see—
neither chance nor finding cost is required to realize its existence—yet it has not been
appropriated. Any squatter can establish first possession by enclosing it, thus excluding
everyone else’s access to it. However, in this case, the analogy with finding is incomplete, because those who used to enjoy access to the resource are now denied such
access.
The enclosure worsens their situation even though it does not violate their rights.
If the unowned resource has been used regularly by identifiable individuals, commonpool ownership may be implied, and these individuals should be paid compensation in
the form of reliance-based damages. Enclosure itself is not a tort. It constitutes a clash
of two liberties, not a clash of liberty and a right. If exclusion is successful and just
claims for compensation on grounds of reliance are satisfied, the resource passes legitimately into the ownership of the finder-encloser.
The Law of Nature and Human Flourishing
The state of nature, as earlier defined, is not a state of license, even though people in
that state have an uncontrollable liberty to dispose of their property. The state of
nature has a law of nature to govern it, which obliges everyone (Locke [1690] 1991,
bk. 2, para. 6). As every individual is equal and independent under that law, no one
ought to harm another in his life, liberty, or possessions. In the state of nature, the law
of nature provides that every man has a right to punish the transgressions of that law to
such a degree as may hinder its violation. All who are damaged by the unlawful act
have a particular right to seek reparation from the transgressor. In this sense, every
individual has executive power in the state of nature.
Because men are free, equal, and independent by nature, no one can be subjected
to the political power of another without his own consent. Why would people give
such consent? Locke’s answer is that although in the state of nature men have such
rights, the enjoyment of them is uncertain and constantly exposed to the invasion of
others (Locke [1690] 1991, bk. 2, para. 123). People create civil society mainly for
the mutual preservation of their lives, liberties, and estates, which Locke calls by the
general name property.
Although man gives up the executive power to protect his own property when he
enters into civil society, he does so only to better preserve his property. The power of
civil society is constrained to secure everyone’s property by providing against the de-
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fects inherent in the state of nature. Even if, as Locke supposed, majority rule governs
society, it does so subject to the strict requirement that every man’s life, liberty, and
estates must be protected at least as well as he could protect them in the state of
nature. Evidently, such an outcome can be achieved only by the minimal state, that
which exists solely to determine and defend property rights against potential internal
and external aggression. Note that this definition of the minimal state permits a state
whose size may vary according to the nature and scale of the forces of aggression it is
obligated to resist.
I shall now argue that human flourishing occurs best in the environment provided by the minimal state; that political societies composed of individuals with diverse
interests predictably stifle human flourishing unless the state takes no action except to
uphold the negative natural rights of all citizens. This argument follows in the lineage
of classical liberal scholars perhaps best epitomized by John Locke ([1690] 1991),
Wilhelm von Humboldt ([1791] 1969), and John Stuart Mill ([1859] 1989).
It is instructive to initiate this analysis of human flourishing with Aristotle’s concept
of eudaimonia, which describes a state of individual well-being induced by living rationally or intelligently and characterized by self-actualization and maturation. Use of the
term eudaimonia in no sense implies an endorsement of Aristotle’s ethics, which does
not embrace the notions of natural rights and individual liberty central to this article.
Although eudaimonia is usually translated as “happiness,” this is misleading if not
qualified. Here, happiness should be understood not simply as the gratification of
desire, but rather as the satisfaction of right desire—the desires and wants that will lead
to successful human living (Rasmussen and Den Uyl 1991, 36). Of course, man is not
only a rational being but also an animal with the biological capacity and need for
sensory experiences. Emotions play a significant role in achieving eudaimonia. Nevertheless, human flourishing requires that the emotions be controlled by man’s capacity
to reason. For a successful life, man must live so that he achieves goals that are rational
for him not only from an individual perspective but also as a human being (Machan
1975, 75). In so doing he controls his animal passions.
In a society of diverse individuals, the outcomes of human flourishing will reflect
that diversity. Human flourishing is unlikely to lead to a consensus about the good,
despite much modern consequentialist reasoning to the contrary. Value pluralism, which
so concerns conservatives and communitarians, will be dealt with later, and I shall
argue that it constitutes a problem only within the context of the nonminimal state.
Human flourishing or eudaimonia must be attained through a person’s own efforts. It cannot be achieved as the result of forces beyond his control. If a human is to
flourish, the cardinal virtue is rationality, which can develop only when an individual
has full responsibility for his own choices. Individuals cannot flourish or grow when
others make choices for them or when they are not held responsible for the choices
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they make, because the human faculties of perception, judgment, mental activity, and
even moral preference are exercised only in making a choice:
He who lets the world, or his own portion of it, choose his plan of life for
him, has no need of any other faculty than the ape-like one of imitation. He
who chooses his plan for himself, employs all his faculties. He must use
observation to see, reasoning and judgment to foresee, activity to gather
materials for decision, discrimination to decide, and when he has decided,
firmness and self-control to hold to his deliberate decision. And these qualities he requires and exercises exactly in proportion as the part of his conduct
which he determines according to his own judgment and feelings is a large
one. It is possible that he might be guided in some good path, and kept out
of harm’s way, without any of these things. But what will be his comparative
worth as a human being? It really is of importance, not only what men do,
but also what manner of men they are that do it. (Mill [1859] 1989, 59)
Of course, the laws of nature do not guarantee that every human being will
flourish. Some will not seize the opportunity provided by liberty to fulfill their lives to
the limit of their respective capacities. Many will evade the burdens and constraints of
choice and make their way in life through imitation or servitude rather than creativity.
Others will be overwhelmed by their passions, discarding rationality in favor of purely
sensory pleasures. The laws of nature offer only opportunities, not a guarantee of
utopia. They also protect individuals from the choices by others that threaten their
lives, liberties, or property. The freedom to flourish is not a license to behave in ways
injurious (in this sense) to others. Fundamentally, the law of property, of contract, and
of tort, effectively enforced, would control the injurious impulses incidental to human
flourishing.
In the Lockean tradition of negative natural rights, the natural right to private
property arguably is its most controversial component. This controversy extends to
the relationship between property rights and human flourishing (Rawls 1971). This
relationship, therefore, requires particular attention. Individuals are material beings,
not, as Rawls supposes, disembodied ghosts. Being self-directed or autonomous is not
some psychic state but pertains to actions in the real world and often involves material
resources. By using and manipulating material resources, autonomous individuals, in
large part, develop and exercise their creativity under conditions of liberty.
For individuals to flourish, they need to maintain control of what they have produced (Buchanan 1993; Rasmussen and Den Uyl 1991, 116) and to retain or dispense
their accumulated resources according to their own judgment. In this respect, the
imprescriptible right to property takes its full place with the inalienable rights to life
and liberty as the strongest foundation for human flourishing.
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The Nonproblem of Value Pluralism
John Gray (1989, 1993) has argued for what he calls plural realism in ethics along the
following lines: because there are definite limits on the varieties of human flourishing
and there are many forms of social life, often involving divergent and uncombinable
goods, in which human beings may flourish, no one form is the one right way of life
for man. Plural realism thus differs sharply from Aristotelian ethics, which claims that
the one best form of life for the human species can be rationally discovered. Plural
realists, in contrast, argue that human well-being can be realized in many, diverse, and
incompatible forms of social life. With this assessment I have no quarrel; indeed it is
the essence of the political philosophies of both Locke and Mill (Waltzer 1994).
Gray (1993), however, deploys plural realism as a weapon to attack classical liberal ethics, most certainly the brand of ethics I have advanced in this article. He claims
that pluralism fells classical liberal meliorism, which ranks societies by the degree to
which they approximate a classical liberal order; that it overwhelms the notion that all
human beings are endowed with rights, because highly stratified societies may give rise
to some form of human flourishing; that it destroys Kant’s notion that only persons
have intrinsic value, because elements of a “rich cultural environment” may enter into
autonomous choice constitutively rather than instrumentally.
In passing this judgment, Gray lays claim to intellectual support from Isaiah Berlin, in his view the most compelling liberal political philosopher of the twentieth century (Gray 1996). At the heart of Berlin’s thought, he claims, is value pluralism, an
idea of enormous subversive force. If there is no single master-value and some values
are not necessarily compatible or harmonious, no single moral theory can guide our
conduct when we face moral dilemmas that force us to forsake one good for another.
No metric enables us to make trade-offs. In such circumstances, classical liberal institutions have no universal authority.
Whether Gray is accurate in his reflections on Berlin—and there is a lot of evidence that Berlin is a fox who knows many things rather than a hedgehog who knows
one big thing (Kukathos 1996)—he wields these reflections to attack classical liberal
political orders, arguing that they have no general superiority. In Gray’s view, value
pluralism dictates pluralism in political regimes and undermines the claim that only
classical liberal regimes are fully legitimate. Gray finds a wide range of past and present
societies that are far distant in nature from classical liberal orders to be compatible with
his concept of civil society.
In my view, the argument from value pluralism strengthens rather than weakens
the case for a political society grounded either on the law of nature or, equivalently, on
Jasay’s maxims set out in Before Resorting to Politics (1996). For only in such a society,
where the negative rights of individuals are strictly enforced, will value pluralism withstand public-choice pressures to conform either to the values of transient majorities or
to the dictates of an autocrat. In his critique of classical liberal political orders, Gray
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falls into a categorical error of assuming that the whole of society is politicized, that
the supposed monism of classical liberal values will be imposed on all aspects of an
individual’s life.
This assumption is not the case. By definition, a classical liberal order constrains
politics to its minimal form, leaving individuals free to form their own associations and
groups and to pursue their own goals subject only to the laws of property, contract,
and tort, uninhibited by political pressures. Ultimately it leaves individuals free even to
abandon the order itself should they so choose. Classical liberals will not force individuals to be free (Rowley and Peacock 1975). Citizens who flourish within the framework of classical liberalism, however, will not easily choose to deny themselves the
advantages they enjoy.
A Flawed Concept of Civil Society
Gray (1993) claims that classical liberalism, as a doctrine taken to have universal prescriptive authority, is dead; its philosophical foundations are in a state of collapse. All
that remains is “the historic inheritance of civil society that has now spread to most
parts of the world” (314). Civil society, as defined by Gray, superficially conforms with
the basic tenets of a classical liberal order, although on a closer examination this conformity is discovered to be a mirage.
By civil society, Gray (1993) means a number of things. First, it is a society tolerant of the diversity of views, religious and political, that it contains and in which the
state does not seek to impose any comprehensive doctrine. In this sense, Calvin’s
Geneva was not a civil society, nor were any of the societies characterized by twentiethcentury totalitarianism.
Second, it is a society in which both government and individual citizens (Gray
significantly refers to them as its subjects) are restrained in their conduct by a rule of
law. A state in which the will of the ruler is the law cannot contain a civil society. In
consequence, civil society presupposes an omnipotent but limited government.
Third, civil society is characterized by the institution of private property. Societies
in which property is vested in tribes or most assets are owned or controlled by governments cannot be civil societies. Private property is defended as an enabling device
whereby individuals with radically different goals can pursue such goals without recourse to a collective decision-procedure that must be highly conflictual. Private property, in Gray’s view, is compatible with a wide range of political institutions.
These institutions need not conform to classical liberal predilections. Nor need
they contain the culture of individualism. Nor need they embrace the institution of
market capitalism, which in Gray’s opinion is not the only market institution compatible with private property. In Russia and Japan, for example, municipal, village, and
cooperative forms of property ownership are likely to prove greatly superior to the
capitalist form (Gray 1993, 316).
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The criteria set out by Gray as the defining characteristics of civil society are
capable of defining a narrow or a broad tent, depending on how the words are interpreted. By his selection of societies he categorizes as civil societies, Gray unequivocally
chooses the broad-tent definition. The societies of North America and Western Europe clearly qualify, although Gray is not uncritical of the growth of government in
these countries, especially during the second half of the twentieth century. One senses
that something is seriously awry, however, when Gray (1993) adds to this list of civil
societies a range of past and present political orders radically different from the great
democracies: Czarist Russia, Meiji Japan, Bismarckian Prussia, Duvalier’s Haiti,
Singapore, Hong Kong, South Korea, and Taiwan. None of these has demonstrated
great tolerance for diversity of opinions and lifestyles; none has provided great security
for private property rights, recent indexes of economic freedom (Gwartney, Lawson,
and Block 1996) notwithstanding; and none has protected the lives and liberties of
citizens by restricting government through any recognizable rule of law enforced by
an independent judiciary.
It would be easy to take advantage of Gray’s poor judgment to ridicule the concept of civil society advanced in his recent writings. It is more instructive, however, to
review a stronger contestant for his lists in order to demonstrate the flawed nature of
his broad concept. Certainly many of the citizens of the United States claim preeminence for their political order as the leading example of civil society in the modern
world. The concept of the new world order advanced by Presidents Bush and Clinton
essentially involves a commitment to reshaping all nations in the American image.
Evaluated by the criteria of classical liberalism, however, the United States is not now
a civil society, although it probably was at its founding in 1787 except for the evil
institution of slavery.
In the late twentieth century, the United States has the highest murder rate of all
advanced nations; clearly it is not protecting the lives of its citizens. It also has the
highest incarceration rate of all advanced nations, as a consequence of extremely interventionist legislation and administrative regulations that further erode the liberties of
its nonincarcerated citizens. Its taxes and regulations significantly encroach on the
private property rights of its citizens, and its takings of private property for public use
in no sense honor the wording of the Fifth Amendment to the Constitution. There is
no imprescriptible right to property in the United States.
These characteristics are no accident of fate. They are entirely predictable consequences of the expansion of government beyond the limits of the minimal state, of the
abandonment of either natural rights or Jasay’s maxims “before resorting to politics.”
In many ways Tocqueville anticipated the likely regression of American democracy
away from liberty and civil society and toward equality and noncivil society in volume
2 of Democracy in America.
Tocqueville warned that “the type of oppression which threatens democracies is
different from anything that has ever been in the world before” ([1840] 1969, 691).
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He envisaged “an innumerable multitude of men, alike and equal, consistently circling
around in pursuit of the petty and banal pleasures with which they glut their souls”
(692). In such a society, a man “exists in and for himself, and though he may still have
a family, one can at least say that he has not got a fatherland” (692). In a prophetic
passage, Tocqueville sets out the implications for the political order of this state of
affairs:
Over this kind of men stands an immense, protective power which is alone
responsible for securing their enjoyment and watching over their fate. That
power is absolute, thoughtful of detail, orderly, provident, and gentle. It
would resemble parental authority if, fatherlike, it tried to prepare its charges
for a man’s life, but on the contrary, it only tries to keep them in perpetual
childhood. . . . It provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs
their industry, makes rules for their testaments, and divides their inheritances. Why should it not entirely relieve them from the trouble of thinking
and all the cares of living? (692)
The process of subjugation of such a population is subtle rather than brutal as in
totalitarian orders:
It does not break men’s will, but softens, bends, and guides it; it seldom
enjoins, but often inhibits action; it does not destroy anything, but prevents
much being born; it is not at all tyrannical, but it hinders, restrains, enervates, stifles, and stultifies so much that in the end each nation is no more
than a flock of timid and hardworking animals with the government as its
shepherd. (692)
Much of what Tocqueville feared in 1840 for democracy in America has come to
pass with consequences for civil society that manifest themselves in high crime rates,
high rates of incarceration, a cult of property theft by middle-income groups through
the process of government, and a decline in thrift, manliness, civility, toleration, duty,
self-sacrifice, service, fidelity, self-control, fortitude, honesty, honor, trust, mutual respect, diligence, discretion, and self-improvement (Anderson 1992).
For the most part, these qualities of civil society may seem more psychological
and sociological than economic. My central hypothesis is that they depend not on the
perfectibility of man but on sound political economy as enunciated by the great classical liberal scholars whose ideas form the basis of this article. These lost values will
return, if at all, only through a return to the minimal state obligated to preserve and
protect the lives, liberties, and properties of the citizens who create and effectively
control it. Only in such a society will human beings flourish and assume for themselves
duties and obligations they have currently abandoned in an ever-escalating demand for
unjustified rights and privileges.
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The Restoration of Civil Society
In his History of the Decline and Fall of the Roman Empire ([1787] 1974), Edward
Gibbon describes the gradual emergence and consolidation of classical civil society
throughout the Roman Empire over some six hundred years during the period of the
Great Republic (SPQR). He chronicles the disastrous consequences of monarchy and
the collapse of SPQR following the assassination of Julius Caesar, the subsequent civil
war between Octavianus Caesar and Marc Antony, the final victory of the former at the
battle of Actium (34 B.C.), and the crowning of Octavianus as the Emperor Augustus
Caesar. He relates the slow but inexorable decline and fall of this once great empire
during the following several centuries as it was ravaged from within by internecine
battles for the Imperial Crown, always involving the Praetorian Guard and the Roman
Legions, and from without by the barbarian hordes waiting at the boundaries for any
perceived weakening of imperial resolve.
Following the final collapse, “the greatest, perhaps, and most awful scene in the
history of mankind” (Gibbon [1787] 1974, 6:2441), the institutions of civil society
disappeared completely for the greater part of a millennium. Later Great Britain freed
itself from the Stuart dynasty in 1688 and accelerated the slow process of evolution of
the institutions of civil society, which eventually were to extend far beyond its own
frontiers to encompass much, although by no means all, of its own extensive empire.
The twentieth century has witnessed the decline and fall of the British Empire and,
with it, the erosion of classical liberal civil society, ravaged alike by two world wars and
the follies of unlimited democracy. If this process of erosion is not checked, a new
Dark Age beckons from which, given the destructive power of modern weaponry,
mankind is unlikely to reemerge.
Now that government has grown so large, both in absolute size and in the range of
its functions, in all Western nations, the public-choice constraints obstructing any rapid
return to the minimal state are formidable. The advance of the welfare state has created
a culture of dependency that manifests itself at the polls even as it corrodes human
flourishing among the individuals addicted to its offerings. The politicization of society
that accompanies the growth of government has essentially destroyed the rule of law
and, in doing so, has weakened the protection accorded the lives, liberties, and property
of individual citizens. This weakening of protection, in turn, has curtailed human flourishing even among the more independent individuals in society, lowering the degree of
vigilance on which the law of nature depends for its continued existence.
In such circumstances, public-choice predictions for the restoration of the minimal
state are less than propitious. Without the minimal state, the prospects for the restoration of civil society are as bleak as they were in the dying years of the Roman Empire.
It is instructive in this regard to switch attention from the fundamental characteristics of classical civil society as outlined in this article to the complex of interlocking
institutions and individual dispositions on which civil society may be expected to flourish
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in a twenty-first-century environment. Insights are available concerning these interrelationships from the experience of Great Britain during the late eighteenth and early
nineteenth centuries. The freedom of British citizens at that time stemmed, as Michael
Oakeshott (1991) has noted, not from separate rights, laws, or institutions but from
many mutually reinforcing liberties:
It springs neither from the separation of church and state, nor from the rule
of law, nor from private property, nor from parliamentary government, nor
from the writ of habeas corpus, nor from the independence of the judiciary,
nor from any one of the thousand other devices and arrangements and characteristics of our society, but from what each signifies and represents, namely,
the absence from our society of overwhelming concentrations of power.
(Oakeshott 1992, 387)
In this perspective, individuals considered themselves free in classical-liberal Britain because no one was allowed unlimited power—no leader, faction, party, government, church, corporation, trade or professional association, or trade union. Instead,
power was diffused through what Oakeshott refers to as a civil association in which
each individual acknowledges the authority in which he lives. Respect for the authority
of law did not imply that every individual supported every law. The law itself was a
slowly changing spontaneous order (Hayek 1973) that garnered respect not just for
what it was but also for what it promised to become, always within the framework of
the rule of law. In a civil association, the government “is an instrument of the people,
charged with keeping in good order the institutions which allow people to pursue
their self-chosen ideals” (Green 1993, 9).
The twentieth century has witnessed major retreats by all such civil associations as
illiberal nation states have abandoned the minimal state and have reconstituted their
citizens into what Oakeshott (1991) refers to as enterprise associations. Nation-states
constituted as enterprise associations are composed of individuals related by their pursuit of a common interest or objective. There is but one sovereign purpose. The task of
leaders “is to manage the pursuit of this goal and to direct individuals as appropriate”
(Green 1993, 8). Communism and national socialism were ultimate forms of the enterprise association. However, late-twentieth-century social democracy has evolved as
a less extreme form of this perversion of the civil association, unfortunately much
better entrenched than either of its totalitarian close relations.
Hayek (1973) has demonstrated that the classical-liberal experiment with democracy failed because the institutions chosen to preserve liberty proved inadequate.
In particular, faith placed in the separation of powers—legislative, executive, and judicial—was not justified even in the most sophisticated experiment, the United States
Constitution.
The U.S. Supreme Court, although equal in status to the Congress and the president, had been designated as the crucial check against politicization of the law. It
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played this role effectively until, in 1937, a majority of its justices rendered themselves
unlawful in the case of West Coast Hotel Co. v. Parrish, caving in to pressures from the
White House to subvert the Constitution in favor of unconstitutional New Deal legislation. Thereafter, periodic coalitions between Congress and presidents effectively destroyed the separation of powers and the rule of law.
In large part, classical liberal scholars underestimated the capacity of the state to
subvert society by shifting it from the civil to the enterprise association because they
failed to anticipate the shift from the law of Nomos to the law of Thesis, from the
common law to law making by the state (Hayek 1973). The idea that the law was
immune from interference by government, that it was discovered and not made, was
fundamental to natural law, or the law of God, indeed was the fundamental contribution of Judeo-Christian religion to the seventeenth- and eighteenth-century concept
of civil society. That view was swept away by the extension of the franchise in the
nineteenth and early twentieth centuries and the philistinization of the majority vote
in most advanced democracies.
What was swept away had taken many generations to evolve. It cannot be reestablished by constitutional decree but only by another slow process of evolution. From
a public-choice perspective, such an evolutionary process faces formidable obstacles in
the form of special interests that control the enterprise association. In a civil association, the law must not be the instrument of special interests nor the tool of government. It must constitute a body of moral and prudential rules binding on everyone
(Green 1993, 122). How can law making be restored as the making of impartial rules
of just conduct in an environment subverted by the forces of public choice? How can
it be established in environments that have never experienced the rule of law?
One route to such reform is the weakening of central government through a
process of devolving power (including the power to tax) to the states or provinces in a
federalist system or to the local level in nonfederalist systems. In and of itself, such
devolution does not guarantee a shift away from Leviathan in favor of the minimal
state. In some instances, where the population is highly dependent on the state, devolution may shift the balance even further in favor of Leviathan.
Nevertheless, locally ruled communities would then be free to experiment (at
their own cost) with differing forms of government. To the extent that such experimentation steers clear of contamination by the spending and taxing interventions of
central government, communities that are more successful in encouraging human flourishing signal the existence of a better way to those that are less successful. Given the
powerful forces ranged against such reforms by the central government, if civil associations are once again to replace enterprise associations, devolved competition may be
the only feasible mechanism.
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Bibliography
Anderson, D. 1992. The Loss of Virtue: Moral Confusion and Social Disorder in Britain and
America. London: Social Affairs Unit, National Review Book.
Buchanan, J. M. 1993. Property as a Guarantor of Liberty. Shaftesbury Papers, no. 1. Aldershot,
England: Edward Elgar.
Ferguson, A. 1991. An Essay on the History of Civil Society. New Brunswick: Transaction.
Fukuyama, F. C. 1992. The End of History and the Last Man. New York: Free Press.
Gibbon, E. [1787] 1974. The History of the Decline and Fall of the Roman Empire. 6 vol. New
York: Easton.
Gray, J. 1989. Liberalisms: Essays in Political Philosophy. New York: Routledge.
———. 1993. Post-Liberalism: Studies in Political Thought. New York: Routledge.
———. 1996. Isaiah Berlin. Princeton, N.J.: Princeton University Press.
Green, D. G. 1993. Reinventing Civil Society. London: IEA Health and Welfare Unit.
Gwartney, J., R. Lawson, and W. Block. 1996. Economic Freedom of the World: 1975–1995.
Vancouver, Canada: Fraser Institute.
Hayek. F. A. 1973. Law, Legislation and Liberty. Vol. 1, Rules and Order. London: Routledge
and Kegan Paul.
Humboldt, W. von. [1791] 1969. The Limits of State Action. Cambridge: Cambridge University Press.
Jasay, A. de. 1996. Before Resorting to Politics. The Shaftesbury Papers, no. 5. Aldershot, England: Edward Elgar.
Klaus, V. 1996. Transforming toward a Free Society. Vienna: Mont Pelerin Society Meeting.
Kukathos, C. 1996. What’s the Big Idea? Reason (November):66–70.
Kumar, K. 1993. Civil Society: An Inquiry into the Usefulness of an Historical Term. British
Journal of Sociology 44 (3):375–401.
Locke, J. [1690] 1991. Two Treatises of Government. Edited P. Laslett. Cambridge: Cambridge
University Press.
Machan, T. 1975. Human Rights and Human Liberties. Chicago: Nelson–Hall.
Mill, J. S. [1859] 1989. On Liberty and Other Writings. Cambridge: Cambridge University
Press.
Nozick, R. 1989. The Examined Life: Philosophical Meditations. New York: Simon and Schuster.
Oakeshott, M. 1991. Rationalism in Politics and Other Essays. Indianapolis: Liberty.
Rand, A. 1961. The Virtue of Selfishness. New York: New American Library.
Rasmussen, D., and D. Den Uyl. 1991. Liberty and Nature: An Aristotelian Defense of Liberal
Order. La Salle, Ill.: Open Court.
V OLUME II, NUMBER 3, WINTER 1998
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Rawls, John. 1971. A Theory of Justice. Cambridge: Belknap Press of Harvard University Press.
Roepke, W. 1996. The Moral Foundations of Civil Society. New York: Transaction.
Rowley, C. K. 1996. What Is Dead and What Is Living in Classical Liberalism. In The Political
Economy of the Minimal State, edited by C. K. Rowley. Aldershot, England: Edward Elgar.
Rowley, C. K., and A. T. Peacock. 1975. Welfare Economics: A Liberal Restatement. London:
Martin Robertson.
Simmons, A. J. 1993. On the Edge of Anarchy. Princeton, N.J.: Princeton University Press.
Tocqueville, A. de. [1835/1840] 1969. Democracy in America. New York: Harper and Row.
Waltzer, M. 1994. Multiculturalism and Individualism. Dissent (Spring):185–91.
Acknowledgements: This article is a revised version of the introductory chapter in Classical Liberalism and
Civil Society, edited by Charles K. Rowley and published by Edward Elgar Publishing (1997). Permission to
republish the chapter is gratefully acknowledged. Charles K. Rowley wishes to express deep appreciation to
the Lynde and Harry Bradley Foundation for financial support for this project. He is also grateful to Robert
Higgs for sound editorial advice and to Maria Pia Paganelli for research assistance.
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